REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission, pursuant to Regulation (EU) 2016/2031 on protective measures against plant pests (‘Plant Health Law’)
Date: 2021-07-27
Institutions: Directorate-General for Health and Food Safety, European Commission
Subjects: European Commission, delegated legislation, destruction of crops, pest, plant health control, plant health treatment, powers of the institutions (EU), protection of plant life, surveillance concerning imports, transfer of competence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 27.7.2021  COM(2021) 425 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the delegation of power to adopt delegated acts conferred on the Commission, pursuant to Regulation (EU) 2016/2031 on protective measures against plant pests (‘Plant Health Law’)  
 
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

on the delegation of power to adopt delegated acts conferred on the Commission, 
pursuant to Regulation (EU) 2016/2031 on protective measures against plant pests 
(‘Plant Health Law’) 

1.  INTRODUCTION 

Regulation (EU) 2016/2031 on protective measures against plant pests (‘Plant Health Law’)1 
was adopted in  2016. This  Regulation  entered into force on 15 November 2016 and applies 
from 14 December 2019.  

This Regulation replaces five Directives of plant health law and provides for a risk-based and 
more  proactive  approach  to  the  phytosanitary  protection  of  Union  territory.  It  provides  for 
surveys  for  the  presence  of  pests,  timely  detection  and  notification  of  outbreaks  and 
interceptions,  detailed  rules  for  eradication  and  containment,  prioritisation  of  pests, 
contingency  planning,  simulation  exercises,  more  stringent  import  rules,  harmonised 
certification and a more flexible approach for professional operators to carry out certification 
under official supervision of the competent authorities. This new regime is complemented and 
supported by the rules on official controls introduced by Regulation (EU) 2017/6252. 

According to the provisions of Regulation (EU) 2016/2031, the Commission is empowered to 
adopt a large number of implementing and delegated acts. The Regulation also imposes on the 
Commission the obligation to report to the co-legislators in respect of the delegation of power 
confered on it.  

2.  LEGAL BASIS 

This report is required under Article 105(2) of  Regulation (EU) 2016/2031. Pursuant to this 
provision, the power to adopt delegated acts concerning the matters listed therein is conferred 
on the Commission for a period of five years from 13 December 2016 and the Commission is 
required  to  prepare  a  report  in  respect  of  the  delegation  of  power  at  the  latest  nine  months 
before the end of the five-year period. 

According to that Article, the Commission is empowered  to adopt delegated acts referred to 
in Article 6(2), Article 7, Article 8(5), Article 19(7), Article 21, Article 32(5), Article 34(1), 
Article 38, Article 43(2), Article 46(2), Article 48(5), Article 51, Article 65(4), Article 71(4), 
Article 76(4), Article 81(2), Article 83(6), Article 87(4), Article 89(2), Article 96(2), Article 
98(1), Article 99(1), Article 100(4), Article 101(5) and Article 102(6) of that Regulation. 

Article  105(2)  of  that  Regulation  lays  down  that  the  delegation  of  power  shall  be  tacitly 
extended for periods of an identical duration, unless the European Parliament or the Council 
opposes  such  extension  not  later  than  three  months  before  the  end  of  each  period,  while 
Article 105(3) states that the delegation of power may be revoked at any time by the European 
Parliament or by the Council. 

1  
2  

OJ L 317, 23.11.2016, p. 4. 
OJ L 95, 7.4.2017, p. 1. 

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3.  EXERCISE OF THE DELEGATION 

During the reporting period, the Commission exercised its delegated powers, by adopting the 
following delegated acts: 

  Commission  Delegated  Regulation  (EU)  2019/827  of  13  March  2019  on  criteria  to  be 
fulfilled  by  the  professional  operators  in  order  to  comply  with  the  conditions  set  out  in 
Article 89(1) point (a) of Regulation (EU) 2016/2031 of the European Parliament and of 
the Council and procedures to ensure that those criteria are met3. 

  Commission  Delegated  Regulation  (EU)  2019/829  of  14  March  2019  supplementing 
Regulation (EU) 2016/2031 of the European Parliament and of the Council on protective 
measures  against  pests  of  plants,  authorising  Member  States  to  provide  for  temporary 
derogations  in  view  of  official  testing,  scientific  or  educational  purposes,  trials,  varietal 
selections, or breeding4. 

  Commission  Delegated  Regulation  (EU)  2019/1702  of  1  August  2019  supplementing 
Regulation  (EU)  2016/2031  of  the  European  Parliament  and  of  the  Council  by 
establishing the list of priority pests5. 

By  now  the  Commission  has  used  4  of  the  25  empowerments  to  adopt  delegated  acts  as 
provided in Regulation (EU) 2016/2031. Some of these delegated powers were bundled in a 
single  delegated  act  where  the  rules  are  substantively  linked.  The  bundling  in  a  single  act 
rather than a number of cross-referenced separate acts was considered necessary in the interest 
of  simplicity,  transparency,  to  facilitate  the  effective  application  of  the  rules  and  to  avoid 
duplication. 

The below table shows which acts contain the specific measures adopted under the relevant 
empowerments in Regulation (EU) 2016/2031. 

Empowerments in Regulation (EU) 
2016/2031 
Article 89(2) 

Articles 8(5) and 48(5) 

Delegated Act 

Commission  Delegated  Regulation 
(EU) 
2019/827  of  13  March  2019  on  criteria  to  be 
fulfilled by the professional operators in order to 
comply  with  the  conditions  set  out  in  Article 
89(1) point (a) of Regulation (EU) 2016/2031 of 
the European Parliament and of the Council and 
procedures to ensure that those criteria are met. 
Commission  Delegated  Regulation 
(EU) 
2019/829  of  14  March  2019  supplementing 
Regulation  (EU)  2016/2031  of  the  European 
Parliament  and  of  the  Council  on  protective 
measures  against  pests  of  plants,  authorising 
temporary 
to  provide 
Member  States 
derogations in view of official testing, scientific 
varietal 
purposes, 
or 

educational 

trials, 

for 

3 OJ L 137, 23.5.2019 
4 OJ L 137, 23.5.2019. 
5 OJ L 260, 11.10.2019. 

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selections, or breeding. 
Commission  Delegated  Regulation 
(EU) 
2019/1702  of  1  August  2019  supplementing 
Regulation  (EU)  2016/2031  of  the  European 
Parliament  and  of  the  Council  by  establishing 
the list of priority pests. 

Article 6(2) 

Certain  empowerments  of  Regulation  (EU)  2016/2031  have  not  been  used  during  the 
reporting period for the reasons explained below: 

  The  empowerments  of  Articles  7,  21,  38,  51,  71(4),  83(6),  100(4),  101(5),  and  102(6) 
concerning the amendments of Sections 1 and 4 of Annex I, Annex II, Annex III, Annex 
IV, Parts A and B of Annex V, Annex VII and Parts A, B and C of Annex VIII, in order to 
adapt  them  to  the  development  of  scientific  and  technical  knowledge  and  of  relevant 
international  standards,  were  not  used  so  far.  However  the  Commission  will  assess  the 
need  to  use  them,  once  any  updates  of  scientific  and  technical  knowledge,  or  of  the 
respective international standards, take place. 

  The empowerment of Article 19(7) concerning the specification of the pests referred to in 
point (a) of paragraph 6 of that Article and in point (b) of Article 16 and conditions for the 
application  of  those  derogations,  was  not  used  so  far.  However  the  Commission  will 
assess the need to act in this respect in the light of experience on the practical application 
of the new rule. 

  The  empowerments  of  Article  32(5)  and  Article  34(1),  concerning  the  surveys  on 
protected zones, will be used within 2021. The draft Commission Delegated Regulation is 
currently examined by the respective Expert Group.  

  The empowerment of Article 43(2) concerning the requirements set out in paragraph 1 of 
that Article concerning wood packaging material and the ISPM15 mark, was not used so 
far. However the Commission will assess the need to use it, once any updates of scientific 
and technical knowledge, or of the respective international standards, take place. 

  The  empowerments  of  Article  46(2)  concerning  the  maximum  width  of  third  country 
frontier  zones  and  Member  State  frontier  zones,  as  appropriate  for  the  specific  plants, 
plant  products  and  other  objects,  the  maximum  distance  of  the  movement  of  the  plants, 
plant  products  and  other  objects  concerned  within  the  third  country  frontier  zones  and 
Member State frontier zones; and the procedures for the authorisation of the introduction 
into, and movement within, the Member State frontier zones of plants, plant products and 
other objects, were not used. The Commission will assess the need to act in this respect in 
the light of experience on the practical application of the new rules. 

  The  empowerments  of  Article  65(4)  concerning  i)  addition  of  further  categories  of 
professional operators to be exempted from the application of paragraph 1 of that Article, 
where registration would constitute an administrative burden for them disproportionate to 
the low pest risk related to their professional activities; ii) particular requirements for the 
registration of certain categories of professional operators, taking into account the nature 
of the activity or of the plant, plant product or other object concerned, and iii) setting out 
the  maximum  figures  for  small  quantities  of  particular  plants,  plant  products  or  other 
objects as referred to in point (a) of the first subparagraph of paragraph 3, were not used. 

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The Commission will assess the need to act in this respect in the light of experience on the 
practical application of the new rules. 

  The empowerment of Article 76(4) concerning the conditions for acceptance referred to in 
the  first  subparagraph  of  that  paragraph  to  ensure  the  reliability  of  phytosanitary 
certificates, was not used. The Commission will assess the need to act in this respect in the 
light of experience on the practical application of the new rules. 

  The empowerment of Article 81(2) concerning setting out the cases where, for particular 
plants, plant products or other objects, the  exception of paragraph 1 of that Article shall 
only apply to small quantities, was not used. The Commission will assess the need to act 
in this respect in the light of experience on the practical application of the new rules. 

  The  empowerment  of  Article  87(4)  concerning  detailed  measures  concerning  visual 
examination,  sampling  and  testing,  and  the  frequency  and  timing  of  the  examinations, 
referred  to  in  paragraphs  1,  2  and  3  of  that  Article,  with  regard  to  specific  plants,  plant 
products and other objects, on the basis of the particular pest risks they may present, was 
not  used.  The  Commission  will  assess  the  need  to  act  in  this  respect  in  the  light  of 
experience on the practical application of the new rules of the Plant Health Law. 

  The empowerment of Article 96(2) concerning the requirements set out in paragraph 1 of 
that  Article  in  order  to  adapt  them  to  the  development  of  international  standards  and  in 
particular to ISPM15, was not used. However the Commission will assess the need to act 
in  this  respect,  once  any  updates  of  scientific  and  technical  knowledge,  or  of  the 
respective international standards, take place. 

  The  empowerment  of  Article  98(1)  concerning  the  specification  of  the  requirements  for 
authorisation  of the registered operators applying the mark of wood packaging material, 
where appropriate in view of the development of scientific and technical knowledge and 
international standard, was not used. However the Commission should remain in position 
to  use  it,  once  any  update  of  scientific  and  technical  knowledge,  or  of  the  respective 
international standards, takes place. 

  The  empowerments  of  Article  99(1)  concerning  requirements  for  i)  the  authorisation  of 
professional  operators  as  regards  the  issuance  of  the  official  attestations  referred  to  in 
Article 99(1); ii) the supervision by the competent authority of the professional operators 
referred  to  in  point  (a)  of  Article  99(2),  and  iii)  the  withdrawal  of  that  authorisation 
referred to  in  point (a) of Article 99(2), were not used. The Commission  will assess  the 
need to act in this respect in the light of experience on the practical application of the new 
rules. 

4.  CONCLUSION 

Given  the  limited  time  of  application  of  Regulation  (EU)  2016/2031  up  to  date,  the 
Commission  sees  the  need  for  extension  of  all  empowerments  to  adopt  delegated  acts  as 
provided for in that Regulation beyond the current five-year period. The need to develop rules 
based on the empowerments will remain in the future. This will be particularly important to 
provide  the  necessary  flexibility  in  the  implementation  of  the  new  rules,  to  adjust  them 
regularly to the latest scientific standards and to give possibility to the Commission to act in 
the areas where it did not to this moment, but it may need to do so in the future.  

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